J-A12028-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
M.S.C., JR. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L.M.D.
No. 3197 EDA 2015
Appeal from the Order September 18, 2015
In the Court of Common Pleas of Chester County
Civil Division, at No(s): 2014-05496-CU
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS*, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 16, 2016
M.S.C., Jr. (“Father”) appeals from the order entered September 18,
2015, in the Chester County Court of Common Pleas, which denied his
petition to modify custody and granted the petition to relocate of Mother
(“L.M.D.”) to Toms River, New Jersey, with respect to twins, S.R.D. and
A.S.D., born in May 2009, and B.S.D., born in July 2011 (collectively, the
“Children”). The order further awarded the parties shared legal custody,
Mother primary physical custody, and Father partial physical custody of the
Children every other weekend from Friday at 6:00 p.m. until Sunday at 6:00
p.m. In addition, the order provided that the Chester County Court of
Common Pleas shall retain jurisdiction over this matter until the State of
New Jersey becomes the home state of the Children under the Uniform Child
*
Former Justice specially assigned to the Superior Court.
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Custody Jurisdiction and Enforcement Act (“UCCJEA”), 23 Pa.C.S.A. §§
5401-5482.1 We affirm.
The trial court summarized the relevant procedural and factual history,
in part, as follows:
[L.M.D.] and [M.S.C.] are the parents of twins, [S.] and
[A.], born [in May 2009], and [B.], born [in July 2011]. Mother
and Father never married, and separated in 2011. Mother has
been a stay-at-home mother and the primary caretaker of the
[C]hildren since their birth. Under the custody order in effect at
the time of trial, the parties shared legal custody of their
[C]hildren, with Mother having primary physical custody and
Father partial physical custody of the [C]hildren. That schedule
gave Father custody of the [C]hildren for one overnight every
other weekend and one evening per week.[2]
Father once earned a substantial income, but by 2015 his
income had dropped from $150,000 per year to $10 per hour,
and he could no longer provide adequate financial support for
Mother and the [C]hildren. Mother had not worked outside the
home since 2008, and the parties had amassed significant debt.
The home that the parties purchased when they were together,
and where Mother and the [C]hildren still lived, was in
foreclosure, and was scheduled to be sold at sheriff’s sale.
Fortunately for Mother, her own mother owned a spacious home
in Toms River, New Jersey, and invited Mother and the
1
Pursuant to order of November 2, 2015, upon motion of Father, the trial
court stayed this provision regarding jurisdiction, pending appeal. See
Order, 11/2/15.
2
Under the order in effect at the time, entered on May 27, 2015, the parties
had shared legal custody, Mother primary physical custody, and Father
partial physical custody of the Children. Specifically, Father was awarded
partial physical custody, during the school year, from Tuesday at 5:00 p.m.
until 7:30 p.m. and every other weekend from Friday at 5:00 p.m. until
Saturday at 8:00 p.m. and, during the summer, from Tuesday at 5:00 p.m.
until 7:30 p.m. and every other weekend from Thursday at 5:00 p.m. until
Saturday at 8:00 p.m. See Custody Order, 5/27/15.
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[C]hildren to move in rent-free. Father had recently moved into
his girlfriend’s home in Oxford, [Pennsylvania].
On July 1, 2015, Mother filed an application requesting
permission to relocate with the [C]hildren to her mother’s home
in Toms River, New Jersey. In her petition, Mother cited the
benefits of relocation as providing a stable home for the
[C]hildren, as well as the support of her extended family as
Mother finished her college [degree] and increased her earning
potential. Father objected to relocation, and requested that he
be granted primary physical custody of the [C]hildren.[3]
A trial on both petitions began on September 9, 2015.
Later that day, during the proceedings, Father suffered a cardiac
event.[4] Trial recessed so that Father could be evaluated and
treated at a hospital. Trial continued on September 23rd and was
concluded on September 24, 2015. . . .
Trial court opinion, 11/5/15, at 1-3.
Over the course of the three hearings on the instant petitions, both
Mother and Father testified on their own behalf. In addition, the court heard
from creditor, Keith Kimmel; Paternal Grandmother, D.C.; and Father’s
girlfriend, with whom he resides, J.G.5 Both parties were represented by
3
Subsequent to receipt of Mother’s notice of proposed relocation, Father
filed a counter-affidavit objecting to Mother’s relocation with the Children on
June 1, 2015. Father additionally filed a petition to modify custody and to
deny Mother’s request to relocate on June 3, 2015. Father requested shared
legal custody and primary physical custody of the Children.
4
Father has atrial fibrillation, which was active at the time, and for which he
testified he needs a cardioversion. Father additionally testified that he had
recently lost fifty-one pounds due to a stomach condition for which he
required surgery. See N.T., Hearing, 9/23/15, at 121-122.
5
The court did not and was not requested by the parties, through counsel,
to interview the Children. Opinion and Custody Order, 10/1/15, at 7.
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counsel. Notably, upon resumption, Father was absent during portions of the
proceedings due to his cardiac condition. See N.T., Hearing, 9/24/15, at 3.
By order of October 1, 2015, the trial court denied Father’s petition to
modify custody and granted Mother’s petition to relocate to Toms River, New
Jersey, with the Children. The court awarded the parties shared legal
custody, Mother primary physical custody, and Father partial physical
custody of the Children every other weekend from Friday at 6:00 p.m. until
Sunday at 6:00 p.m. In addition, the order provided that the Chester County
Court of Common Pleas shall retain jurisdiction over this matter until the
State of New Jersey becomes the home state of the Children under the
UCCJEA. The trial court’s order, formatted as an opinion and custody order,
analyzed each of the factors pursuant to §§ 5328(a) and 5337(h) and
included findings of fact and determinations regarding credibility and weight
of the evidence.
Father, through counsel, filed a timely notice of appeal, along with
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(a)(2)(i) and (b). Thereafter, the trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a)(2)(ii).6
On appeal, Father raises the following issues for review:
1. Did the [h]onorable [t]rial [c]ourt err in transferring
jurisdiction to the state of New Jersey in violation of UCCJEA
without taking any testimony concerning this point and
6
The court’s Rule 1925(a) opinion adopted its October 1, 2015 opinion and
custody order which, as indicated, analyzed each of the custody and
relocation factors pursuant to §§ 5328(a) and 5337(h), respectively.
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without Defendant requesting this relief in her Petition for
Relocation?
2. Did the [h]onorable [t]rial [c]ourt err in considering evidence
not in the record by ruling that the parties shall exchange
custody of the children at a location in Bellmawr, New Jersey,
without any testimony or explanation as to that location?
3. Did the [h]onorable [t]rial [c]ourt err in repeatedly holding
that Father’s custodial time would be increased so as to
“lessen any negative impact” of relocation when, in fact, it is
decreased?
4. Did the [h]onorable [t]rial [c]ourt err in placing undue weight
and drawing a negative inference concerning Father’s health
in that Father suffered a cardiac event during the first day of
the hearing and was in active atrial fibrillation for the duration
of the trial; however, Father testified that his illness is short
term and not debilitating?
5. Did the [h]onorable [t]rial [c]ourt err in it’s [sic] consideration
of the relocation factors?
6. Did the [h]onorable [t]rial [c]ourt err in denying Father’s
Petition to Modify Custody to grant him primary custody?
7. Did the [h]onorable [t]rial [c]ourt err in failing to admit into
evidence, or make a part of the record, the medical records of
one of the children, despite Mother authenticating the records
as being those she reviewed from the child’s therapist?
8. Did the [h]onorable [t]rial [c]ourt err in giving undue weight
to [M]other’s role as primary care giver?[7]
Father’s Brief, at 4.
Our standard of review with regard to a custody matter is well-settled:
In reviewing a custody order, our scope is of the broadest type
and our standard is abuse of discretion. We must accept findings
7
The last two issues are noted as withdrawn by Father and are, therefore,
not addressed.
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of the trial court that are supported by competent evidence of
record, as our role does not include making independent factual
determinations. In addition, with regard to issues of credibility
and weight of the evidence, we must defer to the presiding trial
judge who viewed and assessed the witnesses first-hand.
However, we are not bound by the trial court’s deductions or
inferences from its factual findings. Ultimately, the test is
whether the trial court’s conclusions are unreasonable as shown
by the evidence of record. We may reject the conclusions of the
trial court only if they involve an error of law, or are
unreasonable in light of the sustainable findings of the trial
court.
V.B. v. J.E.B., 55 A.3d 1193, 1197 (Pa. Super. 2012) (citations
omitted).
“When a trial court orders a form of custody, the best interest of
the child is paramount.” S.W.D. v. S.A.R., 96 A.3d 396 (Pa.
Super. 2014) (citation omitted). The factors to be considered by
a court when awarding custody are set forth at 23 Pa.C.S. §
5328(a).
E.R. v. J.N.B., 129 A.3d 521, 527 (Pa. Super. 2015).
Section 5328 provides as follows:
(a) Factors.—In ordering any form of custody, the court shall
determine the best interest of the child by considering all
relevant factors, giving weighted consideration to those factors
which affect the safety of the child, including the following:
(1) Which party is more likely to encourage and permit
frequent and continuing contact between the child and
another party.
(2) The present and past abuse committed by a party or
member of the party’s household, whether there is a
continued risk of harm to the child or an abused party and
which party can better provide adequate physical
safeguards and supervision of the child.
(2.1) The information set forth in section 5329.1(a)
(relating to consideration of child abuse and involvement
with protective services).
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(3) The parental duties performed by each party on behalf
of the child.
(4) The need for stability and continuity in the child’s
education, family life and community life.
(5) The availability of extended family.
(6) The child’s sibling relationships.
(7) The well-reasoned preference of the child, based on
the child’s maturity and judgment.
(8) The attempts of a parent to turn the child against the
other parent, except in cases of domestic violence where
reasonable safety measures are necessary to protect the
child from harm.
(9) Which party is more likely to maintain a loving, stable,
consistent and nurturing relationship with the child
adequate for the child’s emotional needs.
(10) Which party is more likely to attend to the daily
physical, emotional, developmental, educational and
special needs of the child.
(11) The proximity of the residences of the parties.
(12) Each party’s availability to care for the child or ability
to make appropriate child-care arrangements.
(13) The level of conflict between the parties and the
willingness and ability of the parties to cooperate with one
another. A party’s effort to protect a child from abuse by
another party is not evidence of unwillingness or inability
to cooperate with that party.
(14) The history of drug or alcohol abuse of a party or
member of a party’s household.
(15) The mental and physical condition of a party or
member of a party’s household.
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(16) Any other relevant factor.
23 Pa.C.S. § 5328(a).
Further, in determining whether to grant relocation, the trial court
must consider the following ten factors:
§ 5337. Relocation
* * *
(h) Relocation factors—In determining whether to grant a
proposed relocation, the court shall consider the following
factors, giving weighted consideration to those factors which
affect the safety of the child:
(1) The nature, quality, extent of involvement and duration
of the child’s relationship with the party proposing to
relocate and with the nonrelocating party, siblings and
other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child and
the likely impact the relocation will have on the child’s
physical, educational and emotional development, taking
into consideration any special needs of the child.
(3) The feasibility of preserving the relationship between
the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and
financial circumstances of the parties.
(4) The child’s preference, taking into consideration the
age and maturity of the child.
(5) Whether there is an established pattern of conduct of
either party to promote or thwart the relationship of the
child and the other party.
(6) Whether the relocation will enhance the general quality
of life for the party seeking the relocation, including, but
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not limited to, financial or emotional benefit or educational
opportunity.
(7) Whether the relocation will enhance the general quality
of life for the child, including, but not limited to, financial
or emotional benefit or educational opportunity.
(8) The reasons and motivation of each party for seeking
or opposing the relocation.
(9) The present and past abuse committed by a party or
member of the party’s household and whether there is a
continued risk of harm to the child or an abused party.
(10) Any other factor affecting the best interest of the
child.
23 Pa.C.S. § 5337(h).
Turning to Father’s first issue, Father questions whether the trial court
erred in transferring jurisdiction to the State of New Jersey, in violation of
the UCCJEA, without taking any testimony concerning this point and without
Mother requesting this relief in her petition for relocation. Father argues that
Mother did not seek to transfer jurisdiction and did not object to a stay of
this provision of the court’s order, nor did the court hear any testimony
regarding this issue. See Father’s Brief, at 24. Father additionally avers that
the Children have significant contact with Pennsylvania, as they have lived in
Pennsylvania all of their lives. See id. at 25. Likewise, Father indicates that
he continues to reside in Pennsylvania, as does his extended family, and his
custodial time with the Children is exercised in Pennsylvania. See id.
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While disputing any error on behalf of the trial court, Mother indicates
that there is no objection to Chester County retaining jurisdiction, as long as
Father maintains residency in Chester County. See Mother’s Brief, at 25.
With regard to a decision declining to exercise jurisdiction under the
UCCJEA, absent an abuse of discretion, we will not disturb a trial court’s
decision not to exercise jurisdiction under the UCCJEA. See Merman v.
Merman, 603 A.2d 201, 203 (Pa. Super. 1992).
Section 5422 of the Domestic Relations Code provides, in part, as
follows:
(a) General rule.--Except as otherwise provided in section
5424 (relating to temporary emergency jurisdiction), a court of
this Commonwealth which has made a child custody
determination consistent with section 5421 (relating to initial
child custody jurisdiction) or 5423 (relating to jurisdiction to
modify determination) has exclusive, continuing jurisdiction over
the determination until:
(1) a court of this Commonwealth determines that neither
the child, nor the child and one parent, nor the child and a
person acting as a parent have a significant connection with this
Commonwealth and that substantial evidence is no longer
available in this Commonwealth concerning the child’s care,
protection, training and personal relationships; or
(2) a court of this Commonwealth or a court of another
state determines that the child, the child’s parents and any
person acting as a parent do not presently reside in this
Commonwealth.
Further, § 5427 states:
(a) General rule.--A court of this Commonwealth which has
jurisdiction under this chapter to make a child custody
determination may decline to exercise its jurisdiction at any time
if it determines that it is an inconvenient forum under the
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circumstances and that a court of another state is a more
appropriate forum. The issue of inconvenient forum may be
raised upon motion of a party, the court’s own motion or request
of another court.
Here, regardless of Father’s continuing residency and exercise of his
custodial time in Pennsylvania, we discern no abuse of discretion by
transferring jurisdiction to New Jersey under the UCCJEA once the Children
and Mother have resided in New Jersey for the appropriate period of time.
Based on all evidence, Mother has been the Children’s primary caretaker.
Further, the trial court stayed this provision of its order pending this appeal.
Therefore, this issue is without merit.
In his second issue, Father raises trial court error for considering
evidence not in the record by ruling that the parties shall exchange custody
of the children at a location in Bellmawr, New Jersey, without any testimony
or explanation as to that location. Father avers that Mother did not present
any evidence or make any proposal as to the location of the exchange and
that the court made this decision based on factors not in evidence. See
Father’s Brief, at 25.
Mother indicates that at the start of trial she requested custodial
exchanges at a midpoint between her proposed residence in Toms River,
New Jersey, and Father’s residence in Oxford, Pennsylvania, noting that
exchanges took place at the New Garden Police Department.8 See Mother’s
8
We note that, per order entered August 11, 2014, subsequent to
conciliation, custodial exchanges were to occur at the New Garden Police
Department. See Custody Order, 8/11/14. See also N.T., Hearing, 9/24/15,
at 187.
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Brief, at 22. Moreover, Mother contends that in her proposed order attached
to her closing argument9 she proposed custodial exchanges at the Bellmawr
Police Department. See id. at 23. However, she suggests that a trial court
may take judicial notice of certain information.10 See id. at 22. “In this case,
Mother proposed the Bellmawr Police Department to the [t]rial [c]ourt.
However, the [t]rial [c]ourt would have been well within its authority to take
judicial notice of the location on its own motion.” Id. at 23. We agree.
In the instant matter, the certified record does not include Mother’s
proposed order attached to her closing argument.11 Nonetheless, at the
commencement of the hearing on September 9, 2015, counsel for Mother
requested that the parties meet at a location in the middle for custodial
exchanges, observing that the exchanges took place at the New Garden
Police Department. See N.T., Hearing, 9/9/15, at 8. Counsel offered,
“Mother would seek to have the parties meet in the middle for
transportation. Currently, the exchanges take place at the New Garden
Police Department for various reasons related to the case. We can find any
police department at which the parties could meet.” Id. Further, pursuant to
9
While the certified record contains Mother’s closing argument, a proposed
order is not attached to the copy contained therein.
10
Mother incorrectly cites Pennsylvania Rule of Civil Procedure 201, instead
of Pennsylvania Rule of Evidence 201, in her brief.
11
We acknowledge that we may only consider that which is in the certified
record. See Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006)
(en banc).
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Pa.R.E. 201, a trial court may take judicial notice of an adjudicative fact
“generally known” or which “can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” Pa.R.E.
201(a),(b). And a court may do so on its own accord. See id. at (c)(1).
Hence, this issue fails.
Next, Father challenges the trial court suggesting that his custodial
time would be increased so as to “lessen any negative impact” of relocation
when, in fact, it was decreased. Father indicates that the trial court
proposes, in considering § 5337(h)(1), (3), and (7), that the negative
impact of relocation would be alleviated by increasing Father’s custodial
time. See Father’s Brief, at 27. However, Father argues that the trial court
“either misunderstood or disregarded” his work schedule, which includes
working Sunday from 6:30 a.m. to 5:00 p.m. Id. As such, Father maintains
that “his weekday custody was eliminated and he was given additional
overnights during time when he would have to quit his job in order to
exercise his custodial rights.” Id. at 28. Father further recounts the logistical
difficulties of maintaining contact and a relationship with the Children given
the distance between his residence in Oxford, Pennsylvania, and Mother’s
proposed residence in Toms River, New Jersey. See id. at 27-28.
Here, the trial court stated its goal of providing Father with additional
custodial time because of the relocation. See Trial Court Opinion and
Custody Order, 10/1/15, at 3-5. In discussing § 5337(h)(1), the nature,
quality, extent of involvement and duration of the child’s relationship with
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the party proposing to relocate and with the nonrelocating party, the court
stated, “[t]he [C]hildren’s relationship with Father will be altered somewhat
in that he will no longer see the [C]hildren every Tuesday night as he
currently does. He will, however, be granted additional custodial time with
his children on weekends, holidays and vacations to ensure his consistent
presence in his children’s lives.” Id. at 3.
In considering § 5337(h)(3), the feasibility of preserving the
relationship between the nonrelocating party and the child through suitable
custody arrangements, considering the logistics and financial circumstances
of the parties, the court expressed, “[w]e believe that Father’s relationship
with his children can be preserved and maintained through suitable periods
of physical custody.” Id. at 4.
Similarly, in considering § 5337(h)(7), whether the relocation will
enhance the general quality of life for the child, including, but not limited to,
financial or emotional benefit or educational opportunity, the court
concluded, “[i]n that the [C]hildren will be living with their Mother and
grandmother in a stable environment, relocation benefits the [C]hildren. In
that their Father will be living two hours away, relocation does not enhance
his life or relationship with the [C]hildren. However, to lessen any impact,
Father will be granted additional periods of partial physical custody.” Id. at
5. Although Father testified to his work schedule, Father also testified that
he was on disability and not working at the time. See N.T., Hearing,
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9/23/15, at 140. While he anticipated returning to work, if and when was
unknown. As a result, this issue is without merit.
In his fourth issue, Father asserts that the trial court erred by placing
undue weight and drawing a negative inference concerning his health,
despite his testimony that his illness is short term and not debilitating.
Father argues, “[t]he only testimony before the court concerning Father’s
illness was that at the time of the hearing he was on short term disability
but expected to return to work when his A Fib was controlled.” Father’s
Brief, at 29 (citation to record omitted). Referencing the trial court’s
statement in its Rule 1925(a) opinion, “[o]f significance to our decision were
Father’s continuing health issues, and his almost total inability to articulate
or demonstrate how granting him primary physical custody would benefit the
[C]hildren,” Father further disputes the court’s denial of his request for
primary custody and appears to extrapolate that the court directly correlated
its decision with his health. Id. at 28-29 (citation omitted).
In the case at bar, a review of the record reveals that, on direct
examination, Father testified as follows:
Q. What is the state of your current health at the present
time?
A. Right now I’m in Afib. I’m going for a cardiac version
(sic) on Tuesday, Chester County Hospital. I also need an
operation on my stomach, the pyloric valve that come out of the
stomach into the small intestine does not drain properly and my
stomach retains fluid and I have lost 51 pounds since April 2nd.
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Q. Do you believe that you are still healthy enough to
proceed today?
A. I am going to try.
Q. And you were in Afib all last night?
A. Yes, I was. I’m still in it right now.
N.T., Hearing, 9/23/15, at 121-122. Father additionally testified that he was
on short-term disability with his employer at the time, due to his atrial
fibrillation, but that he anticipated to return. See id. at 140. However, this
was speculative. Father’s current health and employment status are
unknown.
Likewise, of significance, the first day of the hearing was terminated
due to Father’s cardiac condition and, upon resumption, Father was not
present for portions of the proceedings due to his continued cardiac
condition. See N.T., Hearing, 9/9/15, at 105; N.T., Hearing, 9/24/15, at 3.
In considering the § 5328(a) custody factors, the court noted Father’s
medical condition where appropriate. In discussing § 5328(a)(12), each
party’s availability to care for the child or ability to make appropriate child-
care arrangements, the court recounted that Father was not currently
working due to medical issues. See Trial Court Opinion and Custody Order,
10/1/15, at 8-9. Further, in discussing § 5328(a)(15), the mental and
physical condition of a party or member of a party’s household, the court
stated, “[i]n addition, Father’s physical health is of great concern, his history
of a-fib.” Id. at 9.
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Moreover, we do not read the sentence Father references from the trial
court’s Rule 1925(a) opinion to suggest that the court found Father’s
response to its inquiry regarding why he should be granted primary physical
custody related to his health condition(s) or denied him primary physical
custody specifically due to his health. Rather, we read this as two separate
phrases or thoughts. Our reading is supported by review of § 5337(h)(8),
the reasons and motivation of each party for seeking or opposing the
relocation, in which the court noted, in part, “[h]owever, at the trial in this
matter, Father was directly asked why he would make a better custodial
parent and he responded that if Mother and children were to move to New
Jersey the children ‘would have no ordinary life.’ When asked if he wished
to expand on that answer, he declined.” Trial Court Opinion and Custody
Order, 10/1/15, at 5. Consequently, upon review, we discern no undue
weight or negative inference.
With his fifth issue, Father contends that the trial court erred in its
consideration of the relocation factors. As to § 5337(h)(2), the age,
developmental stage, needs of the child and the likely impact the relocation
will have on the child’s physical, educational and emotional development,
taking into consideration any special needs of the child, and the trial court’s
conclusion that “no significant special needs for any of the [C]hildren were
identified,” Father notes a defect in the court’s reasoning. Father’s Brief, at
31. Highlighting Plaintiff’s (Father’s) Exhibit 11, he states, “[n]ot only does it
indicate that the [C]hildren have special needs but it also indicates Mother’s
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refusal to appropriately address those needs.” Id. Looking to § 5337(h)(5),
whether there is an established pattern of conduct of either party to promote
or thwart the relationship of the child and the other party, Father cites
eighteen examples of Mother’s attempts to thwart his relationship with the
Children. Likewise, as to § 5337(h)(8), the reasons and motivation of each
party for seeking or opposing relocation, Father suggests that the court did
not address any of the testimony elicited from Father and his witnesses
regarding Mothers’ motivation, which he submits is her desire to remove him
from the Children’s lives. See id. at 36. Father further addresses undue
emphasis placed on his response to the court’s inquiry why he would make a
better custodial parent. See id. at 37-40.
As we interpret his challenge to the trial court’s order, Father, in
essence, questions the trial court’s conclusions and assessments and seeks
for this court to re-find facts, re-weigh evidence, and/or re-assess credibility
to suit his view of the evidence. This we cannot do. Under the
aforementioned standard of review applicable in custody matters, the trial
court’s findings of fact and determinations regarding credibility and weight of
the evidence are not disturbed absent an abuse of discretion. See E.R., 129
A.3d at 527. As we have stated:
It is not this Court’s function to determine whether the trial court
reached the ‘right’ decision; rather, we must consider whether,
‘based on the evidence presented, given [sic] due deference to
the trial court’s weight and credibility determinations,’ the trial
court erred or abused its discretion. . . .
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King v. King, 889 A.2d 630, 632 (Pa. Super. 2005) (quoting Hanson v.
Hanson, 878 A.2d 127, 129 (Pa. Super. 2005)).
Here, the trial court carefully analyzed and addressed each factor
under § 5337(h) in considering Mother’s request for relocation. The court
concluded, “[w]e have also fully considered that petition of [Mother] for
relocation in light of the testimony presented, and after a careful review of
the statutory factors we will grant Mother’s petition to relocate. . . .” Trial
Court Opinion and Custody Order, 10/1/15, at 1. After review of the record,
we determine that the trial court’s findings and determinations regarding
relocation are supported by competent evidence in the record, and we will
not disturb them. See E.R., 129 A.3d at 527.
Lastly, Father challenges the trial court’s denial of his petition to
modify custody requesting primary custody. Father once more posits that
the court ignored examples of Mother’s attempts to reduce his role in the
Children’s lives. See Father’s Brief, at 40. In addition, Father avers that the
court disregarded evidence regarding the Children’s behavior and Mother’s
actions related thereto. See id. at 41-42. Father states, “[t]he [c]ourt
completely ignore[d] Mother’s own admissions with regard to the
[C]hildren’s behavior in her presence, as confirmed by the Holcomb records
and [P]aternal [G]randmother. Mother’s recitation of her idyllic existence
with the [C]hildren is contradicted by her own words to Holcomb and by the
observations of [P]aternal [G]randmother.” Id. at 42. Likewise, Father
emphasizes Mother’s financial instability. See id. Father also points to
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evidentiary support for his petition, in contravention to the trial court’s
finding. Id. at 41-42.
The [c]ourt’s conclusion that Father offered little evidence as to
this factor does not comport with the record. Father testified that
he is gainfully employed and if his proposed living arrangements
with [Father’s girlfriend] need to be changed he has the ability to
provide a stable environment for the [C]hildren. He testified to
his attempts at involvement in their lives, including signing on as
assistant soccer coach. Paternal Grandmother identified
numerous photographs of Father and the children at sporting
events, Christmas at Longwood, Easter with family members,
swimming with them, birthday parties and a dinner with his
great uncle. [Father’s girlfriend] testified that she was prepared
to open her home to the [C]hildren. She explained her
observations of the [C]hildren and their father and further cited
other examples of Father’s relationship with them stating that
the [C]hildren “…continually tell him they love him and they
hang on him.” She also identified photos of Father and the
[C]hildren and testified to his taking care of them while they are
in his custody. Father, [Paternal Grandmother and Father’s
Girlfriend] testified that none of the [C]hildren exhibited any
anxiety during the custody transitions. The [C]hildren were quiet
and non-communicative until Mother closed the care door after
putting them in their car seats. Once Mother shut the car door,
the [C]hildren became happy and affectionate. All three testified
to their observations that the [C]hildren are happy and content
with [F]ather and do not exhibit any of the oppositional issues of
which Mother complains with regard to [A.]. The [c]ourt’s
conclusion is simply not supported by the evidence and
testimony.
Id. at 42-43 (citations to record omitted).
As we interpret this contest to the trial court’s order, Father, again, in
essence, questions the trial court’s conclusions and assessments and seeks
for this court to re-find facts, re-weigh evidence, and/or re-assess credibility
to suit his view of the evidence, which we cannot do.
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The trial court carefully analyzed and addressed each factor under §
5328(a). As summarized by the court, “[w]e have considered the best
interest of the [C]hildren, based on all of the evidence presented, and
conclude that Father’s request for primary physical custody (contained in his
answer to Mother’s relocation petition) must be denied as Father’s reasons,
stated in his testimony, are palpably inadequate to support his request.”
Trial Court Opinion and Custody Order, 10/1/15, at 1. Hence, upon review,
we determine that the trial court’s findings and determinations regarding the
custody factors are supported by competent evidence in the record, and we
will not disturb them. See E.R., 129 A.3d at 527.
Accordingly, for the foregoing reasons, we affirm the order of the trial
court denying Father’s petition to modify and granting Mother’s petition to
relocate with the Children to Toms River, New Jersey.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2016
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